UK: Q&A – Emergency Legislation Expected – Coronavirus (COVID-19)18 March 2020
A: UK moves from “contain” to “delay” phase
The Government has announced that the UK is moving from the “contain” phase to using new tactics to “delay” the spread of the coronavirus (COVID-19). The UK’s Chief Medical Officer has now raised the risk to the UK from “moderate” to “high”. As such, changes to existing legislation or implementing new emergency legislation – both referred to in this note – are inevitable.
What emergency legislation can we expect?
The Press has speculated that the UK Government will soon introduce emergency legislation to allow for the compulsory isolation of individuals including those over 70 years old; the detention and quarantine of infected people; the prohibition of mass gatherings. The Government will also have the power to shut pubs, bars, cinemas, restaurants and nightclubs etc., and the Police will be able to hand out hefty fines to those who contravene these restrictions.
Further details were announced by Prime Minister, Boris Johnson, in a press conference following the COBRA meeting on 16 March 2020, in which he announced new measures which are currently advisory. However, it is widely anticipated that the new measures will, eventually, become compulsory, as they are underpinned by legislation.
In this summary Q & A document we consider the little known regulations which are already in place, and review how their use may be rolled out, and some of the other legislative powers which the Government may consider using, and/or modifying.
The Health Protection (Coronavirus) Regulations 2020
With little fanfare the Government introduced the Health Protection (Coronavirus) Regulations 2020 (the Regulations) at 6.50am on 10 February 2020. They came into force immediately after they were made. The regulations apply to England only.
The Regulations were made without a draft having been laid and approved by a resolution of each House of Parliament to enable emergency public health measures to be taken to quickly respond to the threat to human health from the new strain of Wuhan novel coronavirus (2019-nCoV) “and to reduce the risk of it becoming more widespread in the community”.
What is the legal basis for introducing the Regulations?
The Regulations were made under the emergency procedure set out in section 45R of the Public Health (Control of Disease) Act 1984. Part 2A of that Act, provides a legal basis to protect the public from threats arising from infectious disease or contamination from chemicals or radiation, and includes powers to impose restrictions or requirements on people, and in relation to things and premises, for use in rare circumstances where voluntary cooperation cannot be obtained [our highlighting].
What is the purpose of the Regulations?
Lord Bethell, from the Grand Committee of the House of Lords, explained on 9 March 2020¹, that:
“The regulations provide the power to screen, isolate and detain those at risk of spreading Covid-19 and, if necessary, to keep them isolated for a period of time. The powers are proportionate—they include a number of important safeguards to ensure that all actions are proportionate. Importantly, the regulations apply only in respect of Covid-19 and have a sunset period of two years from the date of coming into force.
There is a right of appeal to the magistrates’ court against the imposition of a restriction on an individual and group of people believed to have been infected and to be at risk of infecting others. Any detention lasting more than 14 days can be reviewed “as soon as practicable” by the Secretary of State”.
How can those Regulations be made without Government Scrutiny?
Section 45B of the 1984 Act enables the appropriate Minister (defined in section 45T as the Secretary of State for England) to make regulations for preventing danger to public health from conveyances including planes, trains and automobiles, (or the persons or articles on those conveyances) arriving at any place or for preventing the spread of infection or contamination by conveyances leaving any place. It also provides a power for regulations to give effect to international agreements or arrangements, for example World Health Organisation (WHO) recommendations.
Section 45C of the 1984 Act provides a power for the appropriate Minister to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales [Our highlighting].
The Regulations were made under section 45B and 45C to enable a number of public health measures to be taken for the purpose of reducing the public health risks arising from the virus known as Wuhan novel coronavirus (2019-nCoV) (“Coronavirus”).
As explained in the accompanying explanatory memorandum, the statutory instrument would: “enable the imposition of proportionate restrictions (which may include screening, isolation and other appropriate restrictions) on individuals where the SSHSC or a registered public health consultant have reasonable grounds to suspect that the individual is, or may be, contaminated with the Coronavirus. The regulations provide for a police constable to detain an individual and enforce those restrictions as required”.
There is also a provision for police constables to: “detain individuals where they have reasonable grounds to believe an individual is, or may be, infected or contaminated with Coronavirus and are posing a risk to others. The constable is then obliged to have due regard to Public Health England guidance and consult a registered public health consultant in the exercise of their powers”.
For how long could detention powers be used?
Regulation 4 of the Regulations provides that a restriction or requirement to be detained [under regulation 5] until the later of:
(a) the end of the period of 48 hours beginning with the time from which the person’s detention under the regulation begins;
(b) such time as any screening requirements imposed on or in relation to a Person under regulation 5(1) have been complied with and the assessment referred to in that regulation carried out in relation to a Person.
What does this mean?
There is the power to impose “proportionate restrictions” on citizens where the Secretary of State for Health and Social Care (“SSHSC”), Matt Hancock MP; or, a registered public health consultant, have reasonable grounds to suspect that the individual is, or may be, contaminated with the Coronavirus. Also, for detention of individuals where there are reasonable grounds to believe that an individual is, or may be, infected or contaminated with Coronavirus and are posing a risk to others.
What is meant by Detention?
Regulation 9 of the Regulations (Detention or isolation: additional provisions) provides that the Secretary of State or registered public health consultant, must notify a Person (or, where a Person is a child, a person who is a responsible adult in relation to the Person), as soon as the Person’s detention under regulation 4 or 5 starts, or as soon as it is decided to keep Person in isolation under regulation 8, of─
(a) the fact of Person’s detention or isolation;
(b) the powers under which Person is detained or kept in isolation;
(c) the reason for Person’s detention or isolation;
(d) the next steps that may be taken and by whom;
(e) the obligation to keep the need for Person’s detention or isolation under review; and
(f) the penalty for—
(i) absconding, or attempting to abscond, from detention or isolation under regulation 15(1)(b);
(ii) providing false or misleading information intentionally or recklessly under regulation 15(2);
(iii) obstructing a person carrying out a function under these Regulations under regulation 15(3).
How will this be enforced?
Regulation 13 (enforcement) provides that
(1) where a requirement is imposed on a person to be detained or kept in isolation, a constable may do any of the following—
(a) take the person to a suitable place, specified by the Secretary of State or a public health officer, for the person’s detention or isolation;
(b) keep the person in detention or isolation.
(2) where a person absconds from detention or isolation imposed a constable may take the person into custody and return the person to the place of detention or isolation, or take the person to another suitable place specified by a public health officer.
(3) a constable may use reasonable force, if necessary, in the exercise of a power under this regulation.
Could this lead to mass quarantining?
The Parliamentary Under-Secretary of State for Health and Social Care (Jo Churchill) provided some guidance to the Second Delegated Legislation Committee on 9 March 2020.²
“On enforcement, the police have powers to take individuals into custody and return them to designated places. Just as we invoked Arrowe Park and Kents Hill Park, we have other facilities around the country to ensure that people can be encouraged to complete their period of quarantine to protect others. That is the point of these powers. It is not envisaged that this would be used for a mass quarantining situation”.
What is the definition of Isolation?
Regulation 8 of the Regulations provides for the Isolation of persons suspected to be infected with Coronavirus.
“Isolation” in relation to a person means the separation of that person from any other person in such a manner as to prevent infection or contamination (with Coronavirus)
- at a facility designated, by notice published on gov.uk, for the purposes of these Regulations by the Secretary of State;
- in that person’s home;
- in a hospital; or
- at another suitable place
We will be publishing further updates in due course: www.millerrosenfalck.com
The material contained in this note is provided for general purposes only and does not constitute legal or other professional advice specific to your situation, and should not be relied upon. Appropriate legal advice should be sought for your specific circumstances and before any action is taken.
© Miller Rosenfalck LLP, 17 March 2020
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